9911796707
TMI Blog2012 (8) TMI 338X X X X Extracts X X X X X X X X Extracts X X X X ..... ke for which assessee has given an explanation and the said explanation cannot be rejected outright - it is not a fit case for levy of penalty u/s 271(1)(c) - in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... t when the mistake was detected. It was contended that the mistake was inadvertent and there is no tax benefit to the assessee as the ultimate assessed income is Nil. The AO did not accept the contention of the assessee and stated that in case had there been no scrutiny of the assessee's return of income and no details regarding assessee's claim of loss was asked during the course of assessment proceedings, assessee would not have come forward to disclose, that it had claimed excess short term capital loss of Rs.27,38,705. The AO has stated that assessee has made non-bonafide claim and thereby filed inaccurate particulars of income and also concealed particulars of its income. Accordingly, AO levied penalty of Rs.2,73,870 being 100% of tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment but no such attempt has been made which leads to infer that the information offered by the assessee is not bonafide. Ld CIT(A) has further stated that penalty levied u/s.271(1)(c) of the Act is purely a civil liability and has placed reliance on the decision of Hon'ble apex Court in the case of Dharmendra Textiles Processors & Ors , vs Union of India, 166 Taxman 65/(306 ITR 227(SC). Therefore, it is no more necessary for the AO to establish whether the assessee has consciously furnished inaccurate particulars of income or concealed particulars of income. In view of above, ld CIT(A) has confirmed the action of AO to impose penalty u/s.271(1)(c) on account of disallowance of loss u/s.94(7) of the Act at Rs.27,38,705. Hence, assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m of brought forward unabsorbed depreciation although the said claim of deprecation had already been claimed in the preceding assessment year. He submitted that penalty was levied u/s.271(1)(c) but the Tribunal found that the assessee made a mistake of claiming depreciation and cancelled the penalty. Ld AR also referred the decision dated 28.1.2011 of ITAT Mumbai in the case of Tangram Design vs ITO (I.T.A. No.746/Mum/09) and submitted that if there is a lapse committed by the assessee in the figure of loss brought forward due to mistake committed by C.A. handling tax matters of the assessee, it is not a fit case for imposition of penalty as assessee has offered reasonable explanation for the said lapse. Ld A.R. submitted that if there is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fit to the assessee. We observe that assessee has given an explanation that this mistake is occurred due to mismatch in the computer calculation. However, this explanation has been rejected on the ground that assessee is a non-resident and is being assisted by a reputed international counsels/Chartered Accountant. The department has not rejected the explanation of the assessee that the said error is occurred due to mismatch in name of scrip in the computer. It is a fact that no tax advantage was to takes place to the assessee by not reducing the loss on account of loss on dividend stripping as per section 94(7) of the Act. It is a fact that penalty u/s.271(1)(c) of the Act is not to be levied for making any disallowance or making any additi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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